An interview with the editors of Child Protection and the European Court of Human Rights: Lessons from Norway in the Development and Contestation of Children’s Rights

Q: What is this edited collection about?

The edited volume offers a critical and interdisciplinary exploration of how the European Court of Human Rights (ECtHR) and its judgments intersect with children’s rights, national welfare policies, and broader ideological debates. Through contributions from legal scholars, political scientists, and social scientists, the volume bridges disciplinary divides to illuminate the complex interplay between international law and domestic policy.

The driver behind the questions posed in this book is the critique of the Norwegian child protection system and the protection of children’s rights. By examining the ECtHR’s role in the development of children’s rights, as outlined in the Convention on the Rights of the Child (CRC), the contributions in the book highlight discussions that are rarely addressed in international human rights and family-state literature.

The book critically examines child protection and child and family rights litigation before the ECtHR in a multifaceted manner, by investigating decision-making processes and contestation within the Court, as well as its interrelated relations with institutions, individuals, and organizations in civil society, national governments, and local authorities. For example, are the principles developed by the ECtHR implemented in domestic legal systems, and what are the social and political implications at a national and transnational level? Through the study of the Court’s jurisprudence, particularly cases concerning Article 8 (the right to family life) and judgments concerning Norway, we have examined the potential repercussions these have had or could have for Norway and other member states’ activities, as well as for children’s rights in general.

Q: What made you initiate this volume?

In the area of child protection and human rights, Norway presents a paradoxical case that challenges our understanding of welfare states and international law. Despite Norway’s consistently high rankings in child well-being and rule of law indices, the country has faced an unprecedented number of European Court of Human Rights (ECtHR) judgments concerning child protection. As of December 2024, Norway holds the unfortunate record of being found in violation of human rights in more ECtHR judgments concerning its child protection decisions than any other country (Helland et al, in preparation). Violations of Article 8 of the European Convention on Human Rights (ECHR) have been found in 23 judgments – including two Grand Chamber judgments (Strand Lobben and Others v Norway and Abdi Ibrahim v Norway).1 While these cases have attracted substantial attention in the legal community, academia and the public sphere, the conditions and mechanisms that gave rise to and facilitated the large number of Norwegian cases being admitted by the ECtHR remain largely unknown.

This paradox of the ‘Norwegian case’ raises critical questions about the gaps between legal frameworks and practice in child protection systems (CPS), even in high-performing welfare states. Parallel to the many ECtHR judgments on child protection, there is a current of attacks against especially Nordic child protection systems, with massive, international and seemingly coordinated protests (Bragdø- Ellenes and Torjesen, 2020). An illustration is the worldwide demonstrations against the Norwegian CPS – where it is often referred to by its Norwegian name, ‘Barnevernet’ (Norman, 2016). The critique reflects conservative family values movements and backlashes against minority group rights and state institutions in Europe, as well as in other parts of the world. The broader European conflicts over politics, rights and values also encompass the role and functions of supranational courts, raising discussions on state sovereignty and the relationship between politics and law. The massive critique of Norway’s child protection system and parents claiming infringement on their right to family life2 is not only challenging the legitimacy of Norway’s CPS. It can be interpreted more broadly as a challenge to the Nordic welfare state model and its normative foundation. Child protection also addresses the universal challenge of drawing the border between state and family responsibilities, and between individual freedom and government restrictions. The social and legal criticism of the Norwegian child protection provides a unique lens through which to examine broader questions about the dynamics, effects and normative context of international litigation and mobilisation in matters concerning fundamental societal values. The current circumstances actualise several questions concerning the role of human rights and the ECtHR for child protection systems and for children’s rights (Draghici, 2017).

With child protection as a focal point, the interdisciplinary team of authors in this book aims to uncover the conditions and mechanisms for sustaining legitimacy in welfare state institutions facing a backlash against children’s social, civil and political rights. Through the investigation of domestic and international repercussions when the ECtHR scrutinises one country’s practice, we aim to advance understanding of the role of supranational courts and discuss broader implications for children’s rights in the country under scrutiny, Norway, and for other countries’ policies and laws. By examining the ECtHR’s role in the development of children’s rights, as outlined in the Convention on the Rights of the Child (CRC), this book highlights discussions that are rarely addressed in international human rights and family- state literature. One ambition is to critically examine child and family rights litigation to the ECtHR in a multifaceted manner, investigating decision- making processes and contestation within the Court, as well as its interrelated relations with institutions, individuals and organisations in civil society, national governments and local authorities. We will shed some light on why so many child protection cases have been admitted to the ECtHR, and to understand the consequences – both on the Court and on its jurisprudence, and for the relevant laws and practices in the member states. Through this exploration, we seek to uncover the societal challenges and research questions surrounding children’s rights, child protection and the ECtHR in contemporary Europe. [...]

Under Article 1 of the ECHR, children enjoy the same rights as adults to the protection of their human rights and freedoms. However, children were not a concern in the drafting of the Convention, and there are no specific provisions for children’s rights in the main body of the ECHR.6 The granting of rights to children under the ECHR is thus up to the discretion of the Court, and children’s rights and interests were, for a long time, a peripheral concern of the Court (Kilkelly, 1999; Fenton- Glynn, 2021). When carrying out its mandate to interpret and monitor the ECHR, the Court has faced challenges in adjudicating children’s rights, particularly in child protection cases (Kilkelly, 2001; Draghici, 2017). As children themselves rarely bring legal complaints, the question before the court is almost invariably concerned with the parents’ right to family life. In recent years, however, children’s rights have had a stronger hold in ECtHR jurisprudence (Fenton- Glynn, 2021), and the Court has adopted a more child- centric approach (Jacobsen, 2016; Skivenes and Søvig, 2016; Breen et al, 2020). The increasing child- centrism is evident in a stronger emphasis on the child’s individual right to family life under Article 8 of the ECHR, as well as in the acknowledgement of the child as an autonomous and rights- bearing individual. However, this is now changing. The Grand Chamber decision on Strand Lobben and Others v Norway from 2019 is criticised as a setback for children’s human rights (Fenton- Glynn, 2021, p 308).